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How do you attack a tax sale redemption?

Posted by 15789465 on

A prior post told you about an August 27, 2010 Alabama Supreme Court decision addressing when tax sale redemption takes place. Is it when the owner pays the taxes plus interest due the probate judge, or is it when the owner ALSO pays the investor for any insurance premiums and preservation improvements that might be owed? The court said redemption was complete when the owner paid the taxes plus interest and received a redemption certificate from the probate judge.  The court also said, "If it was issued erroneously, [the investor] should have challenged the certificate judicially." The lawsuit would be for one of the "extra-ordinary writs" such as (1) mandamus, or  (2) certiorari, or (3) prohibition.  It is NOT an appeal!!! Please share this information with your lawyer in case you have a need to contest a redemption.  If your lawyer files a plain vanilla lawsuit, or if your lawyer files something called an "appeal," you will eventually get kicked out of court after spending a bunch of money on legal fees.

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3 comments

  • on aug 27, 2010 when the al supreme ct released ross v rosen-rager, the al ct civ app released ross v deutsche bank (2090311) inwhich it reversed the trial judge and held that ross was still entitled to possession, even though deutsche had received a certificate of redemption from tax sale, because deutsche had failed to pay for insurance

    which ruling determines possession?

    howard ross on
  • No one knows the answer. Your lawyer, and the owner’s lawyer, might have different opinions on this subject. Both opinions might seem equally valid when argued by a good lawyer. Only the Alabama Supreme Court can decide for sure.

    Of the three extraordinary writs mentioned by the Alabama Supreme Court, it is my personal opinion that only certiorari is applicable.

    A writ of mandamus is appropriate when the petitioner can demonstrate “(1) a clear right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001) Mandamus does not seem proper in the redemption context because I do not know of any “imperative duty” by the probate court to determine other monies due to be paid to the tax sale purchaser, nor is there any “imperative duty” by the probate judge to collect those other charges before issuing the redemption certificate.

    “Prohibition is proper for the prevention of a usurpation or abuse of power where a court undertakes to act in a manner in which it does not properly have jurisdiction.’ Ex parte K.S.G., 645 So. 2d at 299. A writ of prohibition will issue ‘only if the pleadings show on their face that the lower court does not have jurisdiction.’ Ex parte Perry County Bd. of Educ., 278 Ala. 646, 651, 180 So. 2d 246, 250 (1965). ‘In such instances, the act of the usurping court is wholly void, and will not support an appeal.’ Id.” Ex parte Scrushy, 940 So.2d 290, 293 (Ala. 2006) In the case of a tax sale redemption, no one can allege the probate judge lacked jurisdiction to issue the redemption certificate, so prohibition does not seem to be the correct remedy.

    Common law certiorari is the only extraordinary remedy I think would be available. “[W]here an applicable statute provides no right of appeal and no statutory certiorari review, the only means of review is the common law writ of certiorari.” Hardy v. Birmingham Bd. of Educ., 634 So. 2d 574, 576 (Ala. Civ. App. 1994).

    I repeat, this is a field in which there is no clear direction, and you should ask an Alabama-licensed attorney for advice. I am licensed in Texas, not in Alabama. I cannot give you legal advice. If I were making decisions regarding my own personal affairs, I would assume there is no “automatic stay” just because I filed a petition for writ of certiorari. In other words, I would assume the redeeming owner is entitled to possession during the pendency of the certiorari review, unless I obtained a court order stating otherwise.

    deniselevans on
  • does the tax sale purchaser still have to give up possession of the property to the former owner if a certificate of redemption is issued but the purchaser has filed for one of these writs?

    if the writ vacates the cert of redemption, what next? asuit for damages? what if the redemptioner is not the title holder? what if the redemptioner goes bankrupt? are preexisting liens reinstated – is any judgment i get subordinate"

    howard ross on

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